03 March 2023

An Existential Threat

Frances Raday was in town, the eminent law professor emerita of the Hebrew University of Jerusalem, human rights lawyer, frequent litigator in the Israeli Supreme Court and indomitable fighter for women’s rights, and I was lucky enough to get the opportunity to do an interview with her today. Here is what she told me: 

MS: Many in German politics and media seem to have a hard time to find words for what is happening in Israel right now. What do you make of that?

FR: There is enormous apprehension and fear in Germany to express what they call criticism of the Jewish state. Which is understandable in the historical context. The position regarded as politically correct and in fact almost the legal position is that expression of criticism of Israel is often anti-Semitic or is denying the legitimate right  of Israel to be a state for the self-determination of the Jewish people. Since the creation of the State, there has been tension between liberal democracy and a strong religious lobby which has insisted that Jewish law overrides universal human rights, preventing the writing of the right to equality into Israel’s Basic Law on Human Dignity and Liberty. Nevertheless, up to now some balance has been maintained largely by the intervention of the Supreme Court, which has ruled that universal human rights, and foremost amongst them the right to equality for all citizens is guaranteed as an integral part of human dignity.

But now, almost overnight, there has been a sea-change. What is happening in Israel is unlike anything we have seen before. In Israel itself, there has been an amazingly quick understanding that it is not just some kind of constitutional reform. This is a putsch, a hostile takeover of the State of Israel, by a narrow majority coalition in the Knesset.

MS: How is that?

FR: The coalition partners are working on a minute-by-minute basis to stir up a tsunami of legislation to destroy the division of powers, which are already very weak in Israel, between the government, the parliament and the courts, and to make sure that there is no focus of power in the country which can oppose the coalition’s view of the world, which is fascist and racist. This is the aim of what they are doing. They want the appointment of judges to be political. We have no entrenched constitution, we have no federal system, we have no separation of powers between government and parliament, Knesset members owe their loyalty to their party, not to their constituents. The democratic system is already weak, but that is not enough for them. They want the power to override the Supreme Court. If we allow this, there will be no political and legal channels to voice dissent in Israel any more. The only channel will be the streets. At the moment, there is still access to the High Court which has review powers over legislation which violates human rights. When their legislative agenda is achieved, that will be closed.

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MS: The government argues that they are constitutionally entitled and democratically legitimized to do all that. Are they?

FR: No. They did manage to get a 64-out-of-120-seats majority in Parliament, which is quite a narrow majority. They got it by forming a coalition out of hell, with one of the leaders previously convicted of supporting terrorist organisations and another now openly supporting the razing of a village in the West Bank in retaliation for a murder of two Jewish men by a Palestinian terrorist who came from that village. That coalition is saying: That’s democracy, and those who are opposing us are anti-democratic! But majority rule is not democracy. Liberal democracy necessarily includes protection of human rights, of minorities, of women, of gays, of non-believers, all of which will be gone if they have their way. There is also no respect for democratic procedures. The hearings in the Constitution Committee were a parody. The opposition was steamrolled. This is destruction, not reform. The opposition parties have finally called the bluff and have boycotted voting on the legislative proposals, refusing to legitimize this illegitimate process by playing along.

MS: In Hungary and Poland, the governments could rely on the fact that these constitutional matters are perceived by large parts of the population as highly technical and abstract affairs, largely unrelated to their daily life. Is that the case in Israel, too?

FR: No. Bibi Netanyahu has the most effective machinery of manipulation, deception and lies probably in human history. I mean, he is astounding! He is a brilliant manipulator. And yet, against this enormous machine of propaganda, and with hardly any funding, a tremendous civil society movement of resistance has managed to turn this into an issue which is not dictated by the coalition and people are very much aware of the dangerous undermining of democracy. I can’t believe it myself. It’s not just the Supreme Court. In some ways the Court has become a symbol. But the Court is not the only target. It’s the army, the economy, high tech, the universities, the media, the education system that are at stake, and leading establishment figures in all these sectors have come out in extreme opposition.  It’s also the West Bank, the annexation, the border police. This is realized by hundreds of thousands of people.

The level of understanding of the imminent danger which has penetrated the Israeli establishment is amazing. Reserve officers in the army and air force, including voluntary special forces, have handed in their ranks and have said they will not come for reserve service. The President of the Supreme Court who had refused to accept a petition asking for disqualification of Netanyahu for the office of the Prime Minister because of his corruption indictments, saying sternly that „no citadel is falling“, has now taken a strong public position on how anti-democratic and unacceptable these government policies are. There are hundreds of thousands of demonstrators out on the street. My daughter lives in Eilat, usually a very right-wing city. Normally, she gets about 12 people out to demonstrations, with passers-by hurling insults at them. Now, the President came to give a speech and call for compromise, and they had a very large crowd demonstrating – in Eilat! Clearly, many people see that there is no compromise with this fascist putsch. You don’t compromise with fascists.

MS: One thing I find hard to understand is the government’s strategy. They have won the election, are in power, command a majority. They could pursue their goals in a more subtle, step-by-step way, replace a key official here, change a law there, prepare the ground, crank up the intensity of their measures gradually as they expand their grip of the state. Instead, they seem to throw it all in the face of state and society at once. Why?

FR: As David Grossmann put it: It is driven by hatred and revenge against the elites. Universalism and human rights are seen as an elitist project. These people are messianic. They are expansionist. They are racist. They are misogynist. And they are angry!

MS: Why is the Supreme Court the prime target of that anger?

FR: All three coalition partners have specific reasons for that. Bibi Netanyahu and the thugs that are the Likud party today are exclusively driven by the motive to keep Netanyahu and his family out of jail. The theocratic Ultra-Orthodox, who are enjoying tremendous privileges, are furious that the Court has said that their exemptions from army service offend the right to equality. Then there are nationalist settlers, who are extremely angry that the Supreme Court exercised any restraining influence over settlements in the West Bank and did not strike down the previous government’s policy to share the gas fields along the coast with Lebanon. They want to destroy the Court, they call it a dictator, despite the fact that the Court has been extremely cautious when it came to interference in the occupied territories and did not rule the settlement on public lands illegal under international law and recently even allowed the seizure of Palestinian private property for the benefit of the settlers in some circumstances. Now they hold the reins of power, and they are galloping, to get for their constituency as much as they can grab before either the world intervenes or they are overthrown. They want the annexation of the West Bank, and they are getting it.

MS: De-jure annexation of the West Bank is happening?

FR: It is. With Minister of Finance Smotrich in charge of civil administration in the West Bank, it does not even claim to be a military occupation regime any longer. Creeping annexation has gone on for a long time, and I blame Labour as much as Likud for allowing it. I am not saying that there were no defense reasons for the occupation of the West Bank. I am not one of these people who think that the Palestinian people and leadership have not been complicit in failing to reach a modus vivendi. They have been complicit. I am not blaming Israel for everything. But the settlements are colonialism. That is not just defense. If it were, it should have been army units sitting there with temporary settlements, not generations of Israeli citizens. This has been a more than problematic enterprise from the beginning. But now it is completely out of control. It has overtaken Israeli democracy. Only a few months ago, I was in a conference in Germany, where I was the only person from Israeli side who said: It’s not yet apartheid, what we have in Israel. I criticized Amnesty International for their use of the term as regards Israel proper, while warning that in the occupied territories it’s on the knife’s edge, but as long as the two-state solution is the aim, and as long as the Palestinian side is complicit in not reaching that aim, it’s not apartheid. I argued this, only a few months ago. But with the statements and actions of this government – I couldn’t possibly say it’s not apartheid. Not any more.

MS: What does that mean for the security of the state of Israel?

FR: It is in grave danger. At the moment, some people are opening bank accounts abroad, if they have money to transfer. The start-up nation of which Netanyahu was so proud – the leaders of the start up companies  are telling him that this is the end of the start-up nation. Leading economists in Israel and internationally are warning that this will severely damage the Israeli economy. This is the end of such a vibrant society, in modern dance, in film, in literature, in science… The difference between Hungary and Israel: In Hungary, it is about the survival of democracy. In Israel, it is about the survival of Israel. I do not think that all these people who are demonstrating and opposing it will stay and live under fascist rule. They will leave. Our children serve in the army, they spend years in the army. Who wants to send their child to serve when a person like Itamar Ben Gvir is Minister of National Security? Who wants a person like Bezalel Smotrich to take part in the decision whether your daughter or son is going to war?

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MS: In Hungary, there has also been a mass emigration of the young, professional, educated elites. That has drained the opposition and stabilized the regime.

FR: Again, Israel is not in the position of Hungary. Hungary is to a large extent protected by NATO and the European Union. Israel is not. The messianic theocrats believe that God will protect Israel against Iran, but most people don’t. So, if you are interested in Israel’s survival in the Middle East, the first thing you need to realize is that it can’t survive as a fascist theocracy. It is not the theocrats who are contributing to the economy, the army, education, alliances with Europe and America. The people who do so are in absolute protest against what is going on. Maybe, at some point, the government will realize that if they get rid of high tech investors, reserve service officers, young conscripts to the army, our European and American allies, that might actually threaten their own agenda. But I don’t see any signs of that at the moment.

MS: To come back to the German reluctance to criticize Israel: if you care for Israel’s security and survival, you can’t be critical enough? 

FR: I didn’t always take the side of radical liberals on this issue. Anti-Israel criticism has sometimes been used as a tool to deligitimize the existence of Israel. I think it is a delicate issue. But at this moment, when so many Israeli establishment figures are denouncing the Israeli government and when members of this government are saying and doing things that are so clearly in violation of international law and in denial of basic human rights, there is no such thing as a neutral stance. As Churchill said about Chamberlain: Don’t look the reality in the eye and turn your face away. Anybody who is trying to turn Israel into a fascist apartheid theocracy which does not acknowledge the right to equality for Arab citizens and humanitarian rights of residents of the occupied territories, should not be welcome in Germany or anywhere else. They should not be accepted as representatives of the state of Israel. They are not legitimate leaders if they undermine to such an extent Israel’s chances of survival.

The week on Verfassungsblog

… summarised by PAULA SCHMIETA:

JASPER MÜHREL continues last week’s discussion of the Mar Menor Case. He argues that it opens the door for a genuinely Western liberal conception and implementation of rights of nature in Europe.

Islands of different size face similar challenges – such as scarce natural resources, high dependence on import and external aid, or non-diversified local economies, just to name a few. YLENIA MARIA CITINO examines constitutional insularity clauses. Citino endorses the idea of granting islands a special constitutional status as well as developing a common vision for European islands.

Last week, the Bulgarian Supreme Court of Cassation rejected the possibility of legal gender reassignment for transgender people. TEODORA PETROVA scrutinises the judgment.

The two earthquakes in early February led to an unprecedented and traumatic humanitarian disaster in Turkey. In this context, KUBILAY YALÇIN considers the debate around postponing the upcoming presidential and parliamentary elections, which, according to Yalçın, are what remains of the Turkish democracy, keeping the same alive. He considers a postponement to be not only unconstitutional but also unlikely.

Only a couple of days ago, the Georgian Parliament registered the bill “On the transparency of foreign influence”, which categorises any private legal entity that receives more than 20% of its budget from a “foreign force” as an “agent of foreign influence”. DAVIT ZEDELASHVILI is of the opinion that the bill is a potentially totalitarian instrument and raises questions about the EU’s soft power.

According to ROHIT SARMA, “freedom of expression is in peril in India”. He discusses the recent governmental ban issued on the BBC documentary “India: The Modi Question” and concludes that “self-regulation has become the flavour of the day”.

After a proposal for a new Chilean constitution was rejected in September 2022, a new constitutional process is now beginning in Chile. SVENJA BONNECKE finds that this process is already much more dominated by the political establishment than the previous one, while the attention and expectations of the population have declined – according to Bonnecke, a case of constitutional fatigue.

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Online platforms had to declare the number of their monthly users which is relevant for whether they count as “very large online platforms” (VLOPs) under the EU’s Digital Services Act (DSA). MAXIMILIAN GAHNTZ & CLAIRE PERSHAN believe that it is too early to celebrate: EU regulators have plenty of work left to operationalize and implement the DSA and to ensure that platforms are held to a high standard that marks a true departure from the status quo.

Since 2017, the Federal Office for Migration and Refugees (BAMF) regularly asked refugees to hand over their mobile phones in order to use the data on the device during the asylum procedure. Now, the German Federal Administrative Court found this practice to be illegal. FRANCESCA PALMIOTTO & DERYA OZKUL offer an analysis of the judgment and its implications.

THOMAS FELTES reviews the decision of the Federal Constitutional Court to reject the constitutional complaint in the Oury Jalloh case. He argues that the court weakens the rights of victims of police violence and their relatives, and calls for the legislator to step in.

STELLA DÖRENBACH comments on the Equal Pay ruling of the Federal Labour Court on 16 February. This may be a milestone, but it is by no means the end of the fight for equal rights in the workplace.

After the Berlin elections for the House of Representatives and the district assemblies were declared invalid by the Constitutional Court of the State of Berlin at the end of 2021, the question arises which impact this has on the legitimacy of the district councils. According to THORSTEN KOCH, a re-election of the members of the district councils elected by the district assemblies is necessary.

 

That’s all for today. All the best to you and see you next week!

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Max Steinbeis